HARBANS Vs. OM PRAKASH

JUDGEMENT

(1.) Judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the second appeal filed by the appellant under Section 100 of the Code of Civil Procedure, 1908 (in short the Code) is the subject matter of challenge.

(2.) Background facts sans unnecessary details are as follows: A suit was instituted by the appellant against the defendants seeking decree of declaration to the effect that the plaintiff had become the owner in possession to the extent of 1/2 share and defendants 2 and 3 have become owner and possession of the balance suit property, on the ground of foreclosure since limitation for redemption of the land had expired. Consequential relief of permanent injunction, for restraining defendant no.1 from alienating the suit land and in any manner from interfering with the peaceful possession of plaintiff and defendants 2 and 3 was sought for.

(3.) Specific stand of the plaintiff was that forefathers of the plaintiff along with forefathers of Prem and Lakhpat sons of Banswari took the land in suit as mortgagees from the ancestors of Bhira about more than 100 years ago, and since then they have continued to be in possession of the suit land as mortgagees. Therefore, the plaintiff and defendants No.2 and 3 are in cultivating possession of the suit land since Smt. Patori daughter of Nanha has not been seen and heard by the plaintiff since he attained majority and her name has been wrongly shown by Halqa Patwari in place of Banwari son of Nanha due to clerical mistake. That plaintiff and defendants No 2 and 3 have become owner in possession of the suit land by way of adverse possession. The suit land has not been redeemed yet and period of limitation of sixty years had already expired. Therefore, the plaintiff and defendant Nos. 2 and 3 have become owners in possession of the suit land whereas the defendant no.1 has no right, title or interest in the suit land, but he alleges that he procured a decree in his favour against Shri Bhira and has become the owner of the suit land. In fact, Shri Bhira and no other person had any title to pass and better title than he had. Hence, the alleged decree is not binding on the rights of the plaintiff. The Plaintiff several times asked the defendant no.1 to admit the plaintiff and defendants No.2 and 3 to be owner in possession of the suit land and also not to interfere into the peaceful possession of the plaintiff and also not to create any charge thereon, but he was acting and did not pay any heed to the said advice.